2010 PLP 926 (YLR)

MS. RUKHSANA AHMED, J.

The counsel for the plaintiff is called absent. On the last date i.e. 18-1-2010, learned counsel appearing on behalf of the defendants had drawn the attention of this Court that the plaintiff has refrained from attending in the suit for the last several dates and according to him the said application has become infructuous. The Court taking the same into consideration, in the interest of justice ordered for issuance of notice for 26-1-2010. Again today the notice has been duly served on the counsel of the plaintiff and he has failed to attend the Court today. The suit filed is for grant of declaration possession permanent injunction and recovery of damages of Rs.20(M) with consequential reliefs. The plaintiff has admitted in his plaint that the subject property bearing No.G/1 admeasuring 1250.76 Sq.yds out of plot bearing No.33 Survey sheet No.PR-2 (Old No.F-3/4). That his father along with the other co-owners sold out their respective share to defendants Nos. I to 13 on 28-3-2003 under a Registered Conveyance Deed before Sub-Registrar Office at Karachi. Thereafter the defendants Nos.1 to 13 entered into sale agreement with defendant No.14 for the said property in August 2005. The plaintiff is contending that the defendants are interfering into the legal rights of the plaintiff in respect of his share into the property under the case and has moved an application under Order XXXIX, Rules 1 and 2, CPC being C.M.A. No.7285 of 2005 in which the plaintiff has prayed with respect of his share in the suit property and has further prayed that no construction should be raised more than first floor as it would be in clear violation of the plaintiff's right and no third party interest may be created. Further the defendants may kindly be restrained from giving effect to their proposed plan and brochure. Learned counsel for the defendant No.14 has filed counter affidavit as far back as on 5-10-2005 to this application and no rejoinder has been filed. Thereafter, the Advocate of the defendant No.14 has drawn the Court's attention to the contents of the counter affidavit stating that the Plot No.33, sheet No.PR-2 has seized to exist as the same has already been amalgamated with Plot No.34, which is defendant No.14 property through permission dated 20-8-2004 granted by the Executive Director Officer, Master Planning Department, CDGK, Civic Centre, Karachi. As such this suit was not maintainable in the eyes of law and further he has stated that the plaintiff's own father sold out the suit plot together with its upper structure to the defendants Nos.1 to 13 by way of a registered Conveyance Deed dated 28-3-2003, which has been admitted by the plaintiff, therefore, the plaintiff has no cause of action against the defendants. The plaintiff has failed to place on record any PT-1 and PT-10 Forms to show that at any point of time either Mst. Aziz Fatima Qureshi or Tanzeelur Rehman who were the previous owners of Plot No.33, Sheet No.PR-2 had paid any urban immovable property tax to the Government of Sindh providing their ownership. Further he has urged that the plaintiff has placed on record of the case along with his plaint fictitious documents which have no value in the eyes of law and allegedly the plaintiff purchased the property from attorney namely Abdul Ghani, but he has failed to place on record any mutation or transfer order issued by the Evacuee Trust Property Board, or Board of Revenue (EP&LU) Department, Government of Sindh and neither any Form-II or Form-VII of record of rights have been placed on record to show that any mutation pursuant to the so-called sale deed dated 12-3-2002 was ever recorded. He has contended that the defendant No.14 is lawful and bona fide registered owner of the plots Nos.33 and 34, sheet No.PR-2, situated at Preedy Quarters, Garden Road and Abdullah Haroon Road, Karachi total admeasuring 2533.89 square yards. The aforesaid plots were purchased by defendant No.14 from its previous owners i.e. defendants Nos.1 to 13 for consideration. After purchasing the aforesaid property from the defendants Nos. 1 to 13, the defendant No.14 got the same mutated in the record of rights maintained by DDO Revenue, Karachi, who has not been made party in the suit. This Court has taken into consideration the arguments advanced by the learned counsel pertaining to the stay application and this Court deems fit to dismiss the said application as the plaintiff apart from losing interest in pursuing the same has shown no cogent reason to support his prayer in the application and as such the same merits no consideration in view of the failure of the plaintiff to prove his claim over the said property and as contended by the learned Advocate of the defendant No.14, if the plaintiff has any grievance the remedy is to be directed against his own father who had sold the property to defendants Nos.1 to 13 and not the present defendants as such the application is disposed of as dismissed. M.H./T-1/K Application dismissed.